Sony dealt blow in PS3 hacking case over jurisdiction question

A San Francisco Judge has rejected Sony's arguments that the case against …

Sony's legal attacks on the hackers behind the recent release of the PlayStation 3 master keys and custom firmware have only begun, but a California judge has raised questions about where the case should be tried. Sony argued that California courts have jurisdiction due to the use of a Paypal account and George Hotz agreeing to the Terms of Service on the PlayStation Network, but San Francisco district court judge Susan Illston didn't think the issue was that cut and dried.

"If having a PayPal account were enough [for California to have jurisdiction], then there would be personal jurisdiction in this court over everybody, and that just can't be right," she stated, as reported by GamesIndustry.biz. "That would mean the entire universe is subject to my jurisdiction, and that's a really hard concept for me to accept."

The ruling on where the case should be tried has been pushed back, and no specific time frame for a decision has been given. Sony has asked for a temporary restraining order to keep the data off the Internet. It also wants the computer equipment used to crack the system and create the firmware, as well as monetary damages. The arguments for the case to be tried in California, not to mention the case for injunctive relief and monetary damages, are based on somewhat shaky and untested legal ground. This is not a good start for the consumer electronics giant.

Makes sense. Would be the day I, a citizen of a foreign country, could be tried on a California court over some felony committed in my country. And I'm sure the same applies to American citizens who are not California residents.

1) Federal Courts don't want everything, they're swamped already. 2) Certain states have clearer, or at least more detailed, laws on specific topics. For example, (I believe) California has developed laws related to computer commerce because the populace and thus the legislators are more aware of the unique issues with computer commerce. Thus the laws on this topic in California are "better" than in, say for example, North Dakota.

"The arguments for the case to be tried in California, not to mention the case for injunctive relief and monetary damages, are based on somewhat shaky and untested legal ground."

I understand about the jurisdiction and injunctive relief, but why is the case for monetary damages based on untested legal ground? Ars previously argued that there was big damage to Sony that they couldn't stop.

Why are they going to court at all? Like that's going to change anything, the cat is out of the bag, you can't delete stuff from the Internet...

What else are they going to do? There's no technical recourse, so the only avenue open to them is legal. Pointless waste of money, but at least looks like "something" at a shareholder's meeting.

I did think "BTW, you're now subject to Californian law" bit in the EULA was just batshit insane though. Cluephone Sony; just because you put things a lawyer says into some onscreen text doesn't mean it's legally binding.

just because you put things a lawyer says into some onscreen text doesn't mean it's legally binding.

It is legally binding. ToS are. It's a misconception they aren't.

However, that does not mean their contents can't be argued against in court, or that their text can't be denied, or even that someone can't decide to disobey. That is, ToS are legally binding, but they are not automatically sanctioned. It's up to court to decide -- usually during litigation -- whether a certain ToS entry has any legal value.

On this particular case, I'm not that familiar with American law and that judge ruling did surprise me. I was expecting that text to be linearly dismissed not on the grounds of jurisdiction, but simply because I thought a ToS cannot redefine jurisdiction.

just because you put things a lawyer says into some onscreen text doesn't mean it's legally binding.

It is legally binding. ToS are. It's a misconception they aren't.

However, that does not mean their contents can't be argued against in court, or that their text can't be denied, or even that someone can't decide to disobey. That is, ToS are legally binding, but they are not automatically sanctioned. It's up to court to decide -- usually during litigation -- whether a certain ToS entry has any legal value.

On this particular case, I'm not that familiar with American law and that judge ruling did surprise me. I was expecting that text to be linearly dismissed not on the grounds of jurisdiction, but simply because I thought a ToS cannot redefine jurisdiction.

I love the internet and it's online lawyers. Please, continue to present your evidence to the intern...I mean, court.

All smart ToS include a jurisdictional designation that say something like " Licensee accepts the terms of this ToS and shall be governed under [CA] law; licensee waives rights to jurisdiction and accepts CA jurisdiction."

I own a PS3. It is in my best interests for Sony to have a solid business model, based on secure tech, so that as a consumer I can have the best possible experience. I know that a companies job is to make money. I know that stealing is wrong. I know that modifying hardware like this, while I do consider it to be 'fair use', is also a fancy way of cheating the system. I know all these things and yet I find it impossible to empathize with Sony, the RIAA, the MPAA, or any corporate entity that takes individual citizens to court. David 1, Goliath 0.

The arguments for the case to be tried in California, not to mention the case for injunctive relief and monetary damages, are based on somewhat shaky and untested legal ground.

I didn't think the DMCA was "shaky...legal ground." The anticircumvention clauses in the DMCA are pretty clear, and the exceptions to them apply expressly to cell phones. At the very least Sony has a legitimate case that will keep the attention whore tied up in court for quite some time, regardless of the final verdict.

The anticircumvention clauses in the DMCA are pretty clear, and the exceptions to them apply expressly to cell phones.

Actually, the exceptions there apply expressly to the iPhone. If you have a phone running any other OS, the exception doesn't apply.

But does it really matter? Any semi good lawyer would argue that said ruling should have no limits to the iPhone or cell phone industry in general. If I own my consumer device and fair use applies in one scenario, there is no reason it should not cover another in which the scenario is very similar.

Personally I think Sony is sitting on shaky ground at best in terms of the anti-circumvention clause, and little to no ground for everything else.

I would also like to point out that the 'damage' ARS spoke of in other articles would be pretty much irrelevant if what Hotz was doing is considered fair use.(for the poster that commented on this)

I own a PS3. It is in my best interests for Sony to have a solid business model, based on secure tech, so that as a consumer I can have the best possible experience.

(EDIT: I understand that the rest of your post went in a different direction. I'm reacting to the relatively common sentiment I see on Ars that locking down the platform helps the user somehow.)

Really? Have you tried using the web browser on the damn thing? It's absolute unadulterated garbage and one of the things the "secure tech" Sony provides manages to do is keep you from installing a third-party browser on their *extremely* capable hardware. Is that really in your best interest? There is no end to the value that could be added to the hardware by the addition of various pieces of third-party software, but instead you're stuck waiting for Sony to get around to implementing things, and even then their focus seems to be more on this asinine DRM struggle than on actually delivering features to the end-user.

On the other hand you have Sony and various other businesses insisting that DRM "enables" features for users, this is an outright lie. The reasoning I usually see is that "content providers" will be unable to allow access to their content unless the platform is locked down, and therefore the reductions of your rights are necessary in order to allow distribution of content on a particular platform to occur. (Intel is doing the same thing with "TPM".) I understand that trusting your users to pay for content is a scary proposition, but the fact is that the cat is out of the bag, users already have the option to access practically all of your media, and all the platform lockdown and DRM being added is not making a difference to that situation. What seems to have been forgotten in all of this is that the consumers as a whole actually have the power here, if consumers say, "I'm not interested in DRM-encumbered media", the various content providers will either come around and provide the media unencumbered or will become irrelevant, and in the end the consumers will have access to the media they want. Alternately you can abuse your honest users, alienate them, and drive them to circumvent your protections as well.

Please, if you can, tell me how Sony locking down the hardware makes for a better user experience without resorting to the above argument about "enabling distribution of protected content". If you disagree with my refutation of that position or my characterization of the argument go ahead, but it won't really add anything if you just repeat the argument.

While I fully believe that I should have the right to run whatever software I want on hardware that I own...I am disturbed by the distribution of someone else's private key on the Internet. I would be quite upset if someone got a hold of my private key and started publishing it.

It is sad that it has come to releasing private keys in order for people to own their hardware.

How can a US court impose any conditions (ie. Injunction to stop distribution) on someone who is not a US resident, and is not on US soil?

What could possibly happen to Hotz if he did not comply with any such conditions (and he stayed out of the US)?

Considering he lives in New Jersey, I don't think we'll find out...

Oh, I thought I had read he was in Europe somewhere..

I did too...from one of the earlier Ars articles:

Quote:

The company is asking the courts for a temporary restraining order to get the infringing keys and software offline, and is targeting George Hotz, the FAIL0VERFLOW group, and 100 unnamed John or Jane Does.......The consumer electronics giant is using a clause in the user agreement to justify suing a Hungarian and a Spaniard in the great state of California.

While I fully believe that I should have the right to run whatever software I want on hardware that I own...I am disturbed by the distribution of someone else's private key on the Internet. I would be quite upset if someone got a hold of my private key and started publishing it.

It is sad that it has come to releasing private keys in order for people to own their hardware.

Their argument us that you don't "own" the hardware, at least not in the traditional sense. Meh. Semantics. Re: publishing the keys, yeah, I'd be pissed too if someone published my secret info that was "key" to my livelihood.

How can a US court impose any conditions (ie. Injunction to stop distribution) on someone who is not a US resident, and is not on US soil?

*rolls his eyes*

And yea, apparently at least one person in the UK has apparently had a letter from Sony, relating to his status in the Lawsuit. I believe, by the obscene forum posting he made in response, that he plans on simply not going to America any time soon.

Other exemptions to the DMCA announced Monday include:*allow the unlocking of mobile phones to change carriers.*allow the cracking of video game digital rights management controls to probe security flaws.*allow the breaking of DVD encryption by professors, students and documentary makers so the clips can be used for education and commentary.*allow the blind to circumvent locks on e-books to enable read-aloud features.*allow the bypassing of broken or irreplaceable dongles.

I think everyone is confused about the new DMCA rules, the new rulings not only apply to iPhone

Close, but what you want is the original ruling

Quote:

[An exemption to the DMCA circumvention clause is granted to ]Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

The nature of how judges get and keep their jobs tend to make them the most reasonable segment of our law enforcement system, with more reasonableness happening as you get higher up the court food chain. It also means they are usually behind on technology. Fortunately, a lot of the ridiculous and harmful cases like this are not just technologically stupid, they are procedurally stupid. Judges hate it when they think you are trying to play games with the law.

Why are they going to court at all? Like that's going to change anything, the cat is out of the bag, you can't delete stuff from the Internet...

To discourage others from doing the same kind of thing in the future, I guess. In the same way that putting someone in jail for murder doesn't bring the victim back to life, but we do it anyway.

My guess is that Sony will lose this case, the cat will continue to run free, and in the long run everyone will win. Sony wins because they will sell more PS3's, consumers win because we are free to use our paid-for hardware in any way we see fit, and the lawyers win because they always get paid no matter what side wins or loses.

Being able to do whatever you want with a PS3 would provide an excellent user experience. Locking down the system allows Sony to provide a consistent user experience. It also gives them security in their investment. PS3's for the longest time were sold at a loss. The intent was that peripherals and software would make up the loss. Sony simply cannot afford to allow any activity that would lead to piracy. If people are not buying games, then Sony cannot put out game systems and developers will not develop games for it. I have long thought that Sony should embrace an app store style for the PS3 and PSP. That would hopefully appease the true homebrewers. However, lets be honest. The number of people interested in piracy far outnumbers those interested in homebrew. The argument for running "backups" off the harddrive is laughable. As are disclaimer statements from hackers "I dont condone piracy" but here is the tool to do it.So it all comes back to a shared responsibility. Sony should open up the system and homebrew people should show restraint. Oh, wait..Thats exactly how it went down. Sony provided Other OS, and things were fine. Then hackers kept looking into exploits to open the system more. So Sony removed Other OS. And now here we are. Some people have to treat every piece of electronics like its Mount Everest. Sometimes you have to recognize where the line is or keep your exploit to yourself. People like Geohot could just keep their hacking private, but they have to feed the ego and show how great they are. He's not a hero or a liberator. All he did was ruin it for the rest of us. He has probably made it so that no game console of the future will have any kind of openness at all. Its just going to get worse.

Being able to do whatever you want with a PS3 would provide an excellent user experience. Locking down the system allows Sony to provide a consistent user experience. It also gives them security in their investment. PS3's for the longest time were sold at a loss. The intent was that peripherals and software would make up the loss. Sony simply cannot afford to allow any activity that would lead to piracy. If people are not buying games, then Sony cannot put out game systems and developers will not develop games for it. I have long thought that Sony should embrace an app store style for the PS3 and PSP. That would hopefully appease the true homebrewers. However, lets be honest. The number of people interested in piracy far outnumbers those interested in homebrew. The argument for running "backups" off the harddrive is laughable. As are disclaimer statements from hackers "I dont condone piracy" but here is the tool to do it.So it all comes back to a shared responsibility. Sony should open up the system and homebrew people should show restraint. Oh, wait..Thats exactly how it went down. Sony provided Other OS, and things were fine. Then hackers kept looking into exploits to open the system more. So Sony removed Other OS. And now here we are. Some people have to treat every piece of electronics like its Mount Everest. Sometimes you have to recognize where the line is or keep your exploit to yourself. People like Geohot could just keep their hacking private, but they have to feed the ego and show how great they are. He's not a hero or a liberator. All he did was ruin it for the rest of us. He has probably made it so that no game console of the future will have any kind of openness at all. Its just going to get worse.

Their "user experience" has been anything but consistent. Backwards compatability? Install other OS? Those 2 stand out pretty loudly. Protecting your customers from themselves isn't being very mindfull of the people who handed over a good deal of money for a machine that Sony doesn't seem to think you completely own. "But But Pirates!!!" is no excuse to treat users so poorly